Workplace bullying & harassment.

The Health and Safety at Work Act 2015 (“Act”) imposes a variety of health and safety obligations on persons within the workplace. These obligations are imposed on persons conducting a business or undertaking (a “PCBU”) as well as officers, workers (which includes employees) and other persons at the workplace.

 A key duty imposed by the Act requires the elimination of health and safety risks, so far as is reasonably practicable. If it is not reasonably practicable to eliminate health and safety risks, then such risks must, so far as is reasonably practicable, be minimised.

Bullying

There is currently no legal definition of ‘bullying’. However, WorkSafe New Zealand has published comprehensive guidelines which define bullying as “repeated and unreasonable behaviour directed towards a worker or a group of workers that can lead to physical or psychological harm”. Therefore, the duty to eliminate health and safety risks in the workplace extends to bullying.

Unreasonable behaviour that is considered bullying may include, but is not limited to, the following behaviour:

• Being excluded;
• Being yelled at;
• Continually being criticised;
• Being sworn at; and
• Being ganged up on and/or singled out.

While a single event of unreasonable behaviour is not usually considered bullying, it is important to remember the duty to eliminate health and safety risks within the workplace. To educate employees and to outline your businesses stance on bullying, its effects and what steps will be taken in the event that bullying has occurred, company policies and procedures should be put in place.

In the event that a complaint is raised by an employee who claims they have been bullied, it is important that this is handled properly. If a complaint concerning bullying has not been properly handled, an employee may bring further action against their employer including a personal grievance claim.

Harassment

 The duty to eliminate health and safety risks in the workplace also extends to harassment. However, unlike bullying, employees are expressly protected against sexual and racial harassment by the Employment Relations Act 2000 and the Human Rights Act 1993.

The Employment Relations Act outlines that sexual harassment in the workplace occurs when a request is made for sexual intercourse, sexual contact or other forms of sexual activity which contains:

• An implied or overt promise of preferential treatment;
• An implied or overt threat of detrimental treatment; or
• An implied or overt threat about an employee’s present or future employment status.

 
Sexual harassment in the workplace may also occur, as defined by the Employment Relations Act, through the use of language, visual material, or physical behaviour that is of a sexual nature which is unwelcome or offensive and has a detrimental effect on an employee’s employment, job performance or job satisfaction.

Racial harassment in the workplace, as defined by the Employment Relations Act, occurs through the use of language, visual material or physical behaviour that:

• expresses hostility towards an employee on the grounds of their race, colour, or ethnic origins; and
• is hurtful or offensive to the employee; and
• has a detrimental effect on the employee's employment, job performance or job satisfaction.

Employers are required to investigate if an employee raises a complaint with their employer that they have been subject to sexual or racial harassment by their co-worker, or by a client or customer. If, after investigation, it is found the employee was subject to sexual or racial harassment, practicable steps must be taken by employers to prevent any repetition of such behaviour.

It is important to conduct a proper investigation after receiving harassment complaints and, if it is found the employee has been harassed in the workplace, then the employer will need to take appropriate and proportionate action regarding the perpetrator. The employer will also need to take all reasonable practicable steps to prevent any repetition of such behaviour.

Employers may be liable, under the Employment Relations Act and the Human Rights Act, for any harassment an employee has suffered in the workplace if all practicable steps to prevent a repetition of behaviour were not taken and harassment towards the employee has continued.